Before you start filling out your documents to apply for judicial review, you need to understand what types of mistakes will allow the judge to interfere with WCAT’s decision. Generally, there are two types of mistakes a judge can look at:
- mistakes in the process WCAT used to make the decision (often called “procedural fairness”); and
- mistakes in the actual decision WCAT made in your case.
1. Procedural fairness mistakes
Procedural fairness means that WCAT must give you a fair chance to know what the appeal is all about and a fair chance to give your side of the story. Procedural fairness looks at the process WCAT used to make its decision and the way that the hearing happened. Here are some examples of problems that may be procedural fairness errors:
- You didn’t get notified about the date of the WCAT hearing;
- You could not attend the WCAT hearing for reasons beyond your control;
- WCAT decided that you were not telling the truth, but did not hold a hearing to hear directly from you;
- You did not get a chance to see all of the evidence that WCAT used to make its decision (for example, you didn’t get a copy of your employer’s evidence); or
- You did not have a chance to test your employer’s evidence (for example, you were not allowed to question one of your employer’s witnesses on an important point).
The following types of problems are usually not procedural fairness problems:
- You and your employer had different evidence about what happened, and WCAT believed your employer’s evidence instead of yours.
- WCAT accepted opinions from other doctors instead of your doctors.
- During the hearing, the Vice-chair asked you to wait your turn to speak and not interrupt.
- The Vice-chair asked you hard questions at the hearing.
Procedural fairness is about the fairness of the process that WCAT used to make its decision. Procedural fairness is not about the fairness of the result of your case. You may think the result of your WCAT appeal is totally unfair, but that does not always mean that the process WCAT used to make its decision was unfair.
- Mistakes in WCAT’s actual decision
WCAT’s decision will normally have reasons explaining why it made the decision that it did. The reasons will set out WCAT’s findings of fact, which means figuring out what actually happened based on all the different evidence. The decision will also set out WCAT’s legal findings, which means deciding what law applies to your case and what the law means. WCAT will then make a decision by applying the facts in your case to the law.
It is important to understand that not every mistake will allow the judge to interfere with WCAT’s decision. How serious does a mistake have to be for a judge to interfere with WCAT’s decision? It depends on what type of error you are saying WCAT made. Figuring out how serious the mistake must be before the judge can interfere is called the “standard of review”. There are two possible standards of review:
- the “correctness” standard of review; and
- the “patently unreasonable” standard of review.
The “correctness” standard of review
Sometimes, the mistake will have to do with something that the government has not given WCAT the sole power to make decisions about. For example, in some cases, WCAT may have to answer questions about certain parts of the Constitution. In these cases, the standard of review may be “correctness”. The “correctness” standard of review means that WCAT must be right. If the court finds that WCAT’s decision is wrong, the court can interfere.
The “patently unreasonable” standard of review
The “patently unreasonable” standard of review will apply if the mistake has to do with something the government has given WCAT the sole power to make decisions about. The government has given WCAT the sole power to decide appeals about most WCB issues, so this will be the standard of review for almost all mistakes about your WCB claim.
“Patently unreasonable” means the decision is openly, clearly, and obviously unreasonable or that there is no evidence that can rationally support it. This is a very difficult standard to meet. Simply showing the judge that the decision is wrong is not enough. Even if the judge disagrees with WCAT’s decision, the judge will not interfere as long as there is something that can support it.
The “patently unreasonable” standard of review for discretionary decisions
A discretionary decision happens when the law does not tell WCAT what it has to do. Rather, WCAT has to make a judgment call, like deciding whether or not to extend a time-limit.
When WCAT has to make a discretionary decision, the judge will only interfere if the decision is patently unreasonable. However, patently unreasonable means something different when dealing with discretionary decisions. A discretionary decision will be patently unreasonable if WCAT:
- made the decision arbitrarily or in bad faith;
- had an improper purpose for doing what it did;
- considered mostly irrelevant factors; or
- failed to take into account things the law said they must take into account.
It is very important to focus on mistakes that will actually allow the judge to interfere with WCAT’s decision. If you get side-tracked, your case likely will not win.